This is the motion of Mizuko Yamaoka for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act"). In her proposed
claim, Ms. Yamaoka alleges that on June 1, 2002, while riding a bicycle, she was
severely injured when she was struck by a car at the intersection of Meeker
Avenue and Union Street in Brooklyn. As a result of the accident, she was
rendered a quadriplegic. According to claimant, as she was traveling north on
Union Street, approaching the intersection with Meeker Avenue, she could see a
green "walk" signal facing her, although her lawyer concedes that "it is
apparent that an overhead light for her direction of travel prior to reaching
the intersection was red." As set forth more fully below, claimant contends
that the walk signal, which was actually for east/west pedestrian traffic, was
angled incorrectly and led her to believe she could proceed into the
intersection. In order to determine this motion, six factors enumerated in the
Act must be considered: whether (1) defendant had notice of the essential facts
constituting the claim; (2) defendant had an opportunity to investigate the
circumstances underlying the claim; (3) defendant was substantially prejudiced;
(4) claimant has any other available remedy; (5) the delay was excusable and (6)
the claim appears to be meritorious. The factors are not necessarily
exhaustive, nor is the presence or absence of any particular factor
controlling.[1]

The first three factors – whether defendant had notice of the essential
facts, had an opportunity to investigate or would be prejudiced by the granting
of this motion are intertwined and may be considered together. See Brewer v
State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998).
Defendant does not dispute that these three factors have been met, and I
conclude that they have been satisfied.[2]

As to an alternate remedy, claimant has also sued the City of New
York[3] and could sue the driver of the vehicle
which hit her. With regard to excuse, claimant essentially states that she only
recently became aware of the State's involvement. Such is not a valid excuse
for the purposes of the Act. See, e.g., Matter of E.K. v State of New
York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d
815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claim appears meritorious.
Claimant has submitted the affidavit of an expert, Nicholas Bellizzi. Mr.
Bellizzi states that the "walk/don't walk" signal for pedestrians crossing Union
Street east/west (claimant was traveling southbound on Union Street) was angled
such that claimant could see it, confusing her. According to Bellizzi, such
pedestrian signal should not have been visible to claimant. He continues
that:

In my opinion this intersection had a highly confusing traffic pattern and
traffic signal configuration, since the operator of a vehicle (including a
bicycle) would be faced with very mixed signals while traveling on northbound
Union. Operators of vehicles take visual clues from all aspects of traffic
patterns, not just the traffic control signals. Before the actual intersection
in question, there was only one traffic signal, located high above the traffic .
. . At this particular intersection, an operator's eyes would naturally be drawn
to the walk sign, which is at eye level and is improperly angled to face two
directions, including [claimant's] . . . my opinion is that the angle at which
the "walk/don't walk" signal was placed and/or maintained, did not conform to
good and commonly accepted safe intersection design practices and the New York
State Manual of Uniform Traffic Control Devices . . . Moreover, the overgrown
foliage on the concrete divider, which would block the view of vehicles
approaching the intersection from the north and west, indicated inadequate and
improper maintenance practices.

See ¶¶6-11 of the July 15, 2005 affidavit of Nicholas Bellizzi,
annexed as exhibit A to claimant's reply papers.

Overall, I find that claimant meets the standard set forth in Matter of
Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395,
402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous,
or legally defective" and (ii) upon consideration of the entire record,
including the proposed claim and any exhibits or affidavits, "there is
reasonable cause to believe that a valid cause of action exists."

Accordingly, having reviewed the parties'
submissions[4], IT IS ORDERED that motion no.
M-70186 be granted and that within forty-five (45) days of the filing of this
Decision and Order, claimant shall serve and file the proposed claim submitted
with this motion, and otherwise comply with §§11 and 11-a of the Court
of Claims Act.

[2]For example, it is alleged that the State
reconfigured the intersection in the 1980's, which according to claimant, "has
been in the same condition for years." In addition, as to the accident itself,
a police report was prepared.

[3]Defendant does not dispute claimant's
contention that while the City of New York owns the site of the Accident, the
State reconfigured the intersection in the late 1980's.

[4]The Court reviewed: claimant's notice of
motion with affirmation in support and exhibits A through I; defendant's
affirmation in opposition; and claimant's reply affirmation with exhibits A and
B.